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Lancashire County Council (20 006 885)

Category : Education > COVID-19

Decision : Not upheld

Decision date : 16 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complained about fault in the arrangements for the school admission appeal for her daughter. The Council was not at fault as the reasons for its actions were related to the COVID-19 pandemic and the temporary rules that applied. We do not find fault in the appeal panel’s decision-making.

The complaint

  1. Mrs X complained that there was fault in the arrangements for the school admission appeal hearing for her daughter. She says she wanted the hearing to take place by video call but it was done by written submissions only, and there was a delay in sending her the decision letter. As a result she says she did not get a chance to make her voice heard in the appeal.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries, including the clerk’s notes of the appeal and the decision letter. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the admission panel followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.

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What I found

School admission appeals

  1. Parents have the right to appeal against a decision to refuse admission to a school. The School Admission Appeals Code (‘the Appeals Code’) is statutory guidance for admission authorities and appeal panels to follow in arranging and deciding admission appeals. Under the Code appellants must have the opportunity to appear in person and present their case.
  2. When making the decision, panels must follow a two-stage decision making process. At stage one, the panel examines the decision to refuse admission. The panel must consider whether:
  • the admission arrangements comply with the law;
  • the admission arrangements were properly applied to the case;
  • admitting another child would prejudice the education of others.
  1. If the panel finds there would be prejudice, the panel must then move to the second stage and consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.

Impact of the COVID-19 pandemic

  1. In April 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These temporarily amend the existing regulations and will be in force until 30 September 2021. The government published guidance to accompany the temporary regulations, 'Changes to the admission appeals regulations during the coronavirus outbreak' ('the Guidance').
  2. The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference. To hold a remote hearing, the appeal panel has to be satisfied that:
    • all parties will be able to present their cases fully;
    • each participant has access to video or telephone facilities allowing them to take part throughout the hearing; and
    • the panel considers the appeal can be heard fairly and transparently.
  3. Where any of these conditions cannot be met, appeals may be decided based on written submissions only. The clerk to the appeal panel should contact the appellant as soon as possible to explain the temporary arrangements for appeals and check they have access to the necessary equipment for a remote hearing.
  4. The Guidance advises that where appeals are decided on written submissions only, the admission authority may take the following approach.
    • The admission authority's representative and the parent should see each other's written submission in advance and have an opportunity to send in questions. Both parties should be able to reply with answers to the questions and any further points they wish to make. They should see each other's answers and have a chance to submit additional evidence if they wish, by a given deadline.
    • The panel should meet by telephone or video conference, with the clerk, to consider all the information and reach a decision in the same way as set out in the Appeals Code.
  5. The temporary regulations and the Guidance suspend the usual timescales for the appeal process. Normally admission authorities must ensure they send out decision letters within five school days of the appeal hearing. Under the temporary rules they have to ensure:
    • after a hearing, or an appeal panel's decision on a written submission case, the decision letter is sent within seven calendar days "wherever possible".

What happened

  1. Mrs X applied for a place for her daughter, D, in year 7 at School 1 from September 2020. There were more applications than places available. The Council placed D in category 5 out of the seven categories, as a child living outside the School’s geographical priority area with a sibling at the School. The last place was filled by an applicant in category 4. So D was refused a place. The Council offered her a place at her nearest school, School 2. She did not accept the place.
  2. Mrs X appealed in early March 2020. On her appeal form she said the reasons she preferred School 1 to School 2 were:
    • School 1 is a good school, better and more well-managed than School 2
    • she has another child at School 1
    • D’s other half-sibling had attended School 2 and had not been happy with it
    • she could not take her two children to two schools at the same time.
  3. The Council wrote to all parents who had appealed to find out what technology they had available at home. It asked them to complete and return a form to say whether they would be able to take part in a virtual hearing by video or phone call, or whether they would be happy to proceed as the appeal panel decided. Mrs X replied, saying yes to both options.
  4. At the end of June the panel members met with the clerk to consider the responses and decide how to deal with the appeals. There were 59 appeals for School 1. About a third of appellants indicated they could not manage a virtual hearing. The decision was to consider all the appeals for School 1 on written submissions only.
  5. The Council wrote to Mrs X on 1 July confirming the panel would deal with her appeal as a written submission hearing on 14 or 15 July. It gave her details of the panel members and invited her to send in any questions or further evidence she had by five days before the date of the hearing. The letter also said:

“If you feel that you will be disadvantaged in any way due to a Disability or communication barrier due to the appeal hearing being conducted by Written Submission then please inform the appeals team…and we will advise further”.

  1. The Council also enclosed copies of her grounds of appeal, a statement of the Council’s case and a note about the procedure for the hearing and the decision-making process.
  2. Mrs X sent the Council a copy of a letter from D’s primary school in support of her appeal.
  3. The appeal panel wrote to Mrs X in advance of the hearing with a question and she responded. She confirmed she had applied for a school place in time.
  4. The appeal panel considered Mrs X’s appeal on 15 July. The same day the Council wrote to her to say her appeal was unsuccessful. It said it would send full details of the decision with reasons “as soon as possible.”
  5. Mrs X says she received the full decision letter on 15 August, although the copy of the letter I have seen is dated 26 August.

Analysis – was there fault causing injustice?

  1. I have considered whether there was fault in the arrangements for the appeal and in the appeal panel’s decision-making.

Appeal arrangements

  1. Mrs X is not happy that the appeal panel dealt with her appeal on the papers only when she would have preferred a remote hearing. In response to the Ombudsman’s enquiries about why the appeal panel did not agree to conduct the appeal this way in her case, the Council explained how the panel made its decision. It said it considered all the parents’ responses and took account of the needs of any of the appellants who may have difficulty making a case in writing.
  2. It said:

“Whilst the Council or the panel do their best to be accommodating to all appellants, this is sometimes challenging given the volumes of appeals in Lancashire. Some panel members therefore have specific concerns about calls dropping, particularly when there are a large number of participants online. Additionally, at peak times, when all panel members are being utilised to full capacity, it can be difficult to just depend on panel members who have better connections.”

“The panel therefore needed to balance its own limitations and needs and appellant needs for a telephone / virtual conference, against the needs for a written submission.”

  1. My view is that the panel considered this matter properly, in line with the Guidance. One of the issues it had to consider was whether all participants, which includes panel members, would have access to technology which would allow them to take part throughout the hearing. There were 59 people appealing for School 1 and a third of them did not have suitable technology to allow them to take part in a remote hearing.
  2. The Council gave Mrs X the opportunity to say whether there were any special reasons why she felt she would be disadvantaged by having the appeal heard on written submissions only. She did not respond.
  3. Based on the evidence I have seen I do not consider there was fault in the way the panel made the decision about the format of the appeal. I found fault with the Council in another complaint for failing to record the reasons for the panel’s decision about the format. The Council says it now ensures the appeal panel records the reasons and so I do not need to make any recommendations on this point.
  4. The Council also gave Mrs X the chance to submit further evidence, and to respond to questions from the appeal panel. It put this information to the panel. This is in line with the Guidance.
  5. Mrs X also complains there was delay in issuing the decision. Although the Council sent Mrs X the initial outcome letter on the day of the appeal hearing, she did not receive the full decision letter with reasons for another four to six weeks.
  6. Under the temporary regulations the Council should send the decision letter within seven days of the appeal hearing “wherever possible”. The Council says it co-ordinates a large number of appeals that have to be heard in a short time frame. To cope with the volume of appeals it sent out two decision letters: the first outlining the result of the appeal and the second explaining the reasons for the decision. Due to the pandemic it had a shortage of available clerks. This meant it had to use those clerks that were available every day, leading to some delays in sending out the second decision letters. The clerk dealing with appeals for School 1 clerked every day for several schools up to mid-August 2020. She then drew up the decision letters for School 1 appeals and sent them out to the parents.
  7. In these circumstances I do not find fault in the time it took to send out the decision letters. The Council has provided a reasonable explanation as to why it was not possible to send them within the recommended timescale. It says it has now recruited extra clerks in preparation for the next round of appeals. It hopes this will make the seven-day timescale more achievable.

Appeal panel’s decision-making

  1. The Clerk’s notes and the full decision letter show the appeal panel followed the two-stage process properly. It found the admission arrangements were lawful and had been correctly applied in D’s case. It found the Council had made out its case that admitting further pupils would be detrimental to the education of children at the School. The decision letter set out the list of points Mrs X made in her written appeal and referred to the further evidence she provided. It noted that School 2 was much closer to her home than School 1, and was only temporarily located at another site. The panel said it carefully considered her reasons for wanting a place at School 1, but did not consider her case outweighed the prejudice to the School.
  2. I am satisfied that the appeal panel considered Mrs X’s appeal properly and I have not seen evidence of fault in the way it reached its decision. So I cannot question the decision it made.

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Final decision

  1. I have found that the Council and the appeal panel were not at fault in the appeal arrangements or the way the appeal was decided. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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